First Circuit Dismisses Appeal of a Denied Motion to Reopen

The First Circuit's decision in Mazariegos v. Lynch is not particularly noteworthy for its fact or the law that it applies. It is, however, a reminder of how much more difficult it can be to attack a removal order collaterally (i.e. through a motion to reopen) than on direct appeal. Mazariegos was granted adjustment of status and a waiver under 212(h) of the INA, but the Government appealed, and the Board of Immigration Appeals reversed the Immigration Judge, finding that Mazariegos did not merit an exercise of discretion. Instead of appealing to a circuit court, he filed a motion to reopen with the Board, which was denied, and appealed to the First Circuit. The First Circuit stated that "Mazariegos may have fared better had he sought review at this point [after the denial of his waiver by the Board] rather than following a motion to reopen denial, and we are not unsympathetic to the difficult place he finds himself in."

It's a curious statement, given that the court later recognizes that it would not have jurisdiction to review a discretionary denial of a 212(h) waiver. "The law [the Government] cites indeed provides that courts cannot review the discretionary component of the Attorney General's section 212(h) waiver decision."

And yet, the procedural posture of a collateral attack is so much more difficult for a non-citizen to litigate, given the presumption of finality of orders of removal, that perhaps a circuit court appeal (to the extent that a judicially cognizable question of law or constitutional claim could be raised) would have served Mazariegos better.

The full text of Mazariegos v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1431P-01A.pdf